Bill Text: NC S300 | 2011-2012 | Regular Session | Chaptered
Bill Title: Miscellaneous Service/Process Amendments
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2011-06-27 - Ch. SL 2011-332 [S300 Detail]
Download: North_Carolina-2011-S300-Chaptered.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
SESSION LAW 2011-332
SENATE BILL 300
AN ACT to (1) allow service by signature confirmation or designated delivery service in small claim actions assigned to magistrates and in administrative cases, (2) clarify that the sixty‑day time frame for serving a summons under rule 4 of the rules of civil procedure applies to all summonses under rule 4(J) and (j1), (3) require that a copy of a motion to terminate parental rights that is servEd on a parent be sent to that parent's attorney of record, if any, (4) require that a party's attorney of record, if any, must be served when service is made under rule 5(b) of the rules of civil procedure, in addition to any service on the party, and (5) clarify that an attorney may be served under rule 5(b) by mail, as recommended by the general statutes commission.
The General Assembly of North Carolina enacts:
SERVICE BY DESIGNATED DELIVERY SERVICE IN SMALL CLAIMS CASES
SECTION 1.1. G.S. 7A‑217 reads as rewritten:
"§ 7A‑217. Methods of subjecting person of defendant to jurisdiction.
When by order or rule a small
claim action is assigned to a magistrate, the defendant may be subjected to
the jurisdiction of the court over his person the court may obtain
jurisdiction over the person of the defendant by the following methods:
(1) By delivering a copy of
the summons and of the complaint to him the defendant or by
leaving copies thereof at the defendant's dwelling house or usual place of
abode with some person of suitable age and discretion then residing therein.
When the defendant is under any legal disability, he the defendant may
be subject subjected to personal jurisdiction only by personal
service of process in the manner provided by law.G.S. 1A‑1,
Rule 4(j)(2).
(2) When the defendant is
not under any legal disability, he the defendant may be served by
registered or certified mail mail, signature confirmation, or
designated delivery service as provided in G.S. 1A‑1, Rule 4(j).
Proof of service is as provided in G.S. 1A‑1, Rule 4(j2).
(3) When the defendant is
under no legal disability, he the defendant may be subjected to
the jurisdiction of the court over his person by his the person of
the defendant by written acceptance of service, service or by
his voluntary appearance.
(4) In summary ejectment cases only, service as provided in G.S. 42‑29 is also authorized."
SERVICE BY DESIGNATED DELIVERY IN ADMINISTRATIVE CASES
SECTION 2.1. G.S. 150B‑23(c) reads as rewritten:
"§ 150B‑23. Commencement; assignment of administrative law judge; hearing required; notice; intervention.
…
(c) Notice shall be given personally
or by certified mail. by one of the methods for service of process under
G.S. 1A‑1, Rule 4(j) or Rule 4(j3). If given by registered or
certified mail, it by signature confirmation as provided by the
United States Postal Service, or by designated delivery service authorized
pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, notice shall be
deemed to have been given on the delivery date appearing on the return receipt.
receipt, copy of the proof of delivery provided by the United States
Postal Service, or delivery receipt. If giving of notice cannot be
accomplished either personally or by certified mail, by a method
under G.S. 1A‑1, Rule 4(j) or Rule 4(j3), notice shall then be
given in the manner provided in G.S. 1A‑1, Rule 4(j1).
…."
SECTION 2.2. G.S. 150B‑36(b3) reads as rewritten:
"(b3) Except as provided
in G.S. 150B‑34(c), the agency shall adopt the decision of the
administrative law judge unless the agency demonstrates that the decision of
the administrative law judge is clearly contrary to the preponderance of the
admissible evidence in the record. If the agency does not adopt the
administrative law judge's decision as its final decision, the agency shall set
forth its reasoning for the final decision in light of the findings of fact and
conclusions of law in the final decision, including any exercise of discretion
by the agency. The agency may consider only the official record prepared
pursuant to G.S. 150B‑37 in making a final decision. A copy of the
decision shall be served upon each party personally or by certified mail by
one of the methods for service of process under G.S. 1A‑1, Rule 5(b).
If service is by registered, certified, or first‑class mail, by signature
confirmation as provided by the United States Postal Service, or by designated
delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt,
the copy shall be addressed to the party at the latest address given by the
party to the agency, and a agency. Service by one of the additional
methods provided in G.S. 1A‑1, Rule 5(b), is effective as provided
therein and shall be accompanied by a certificate of service as provided in G.S. 1A‑1,
Rule 5(b1). G.S. 1A‑1, Rule 6(e), applies if service is by first‑class
mail. A copy shall be furnished to his the party's attorney
of record and the Office of Administrative Hearings."
SECTION 2.3. G.S. 150B‑38(c) reads as rewritten:
"(c) Notice shall be
given personally or by certified mail. by one of the methods for
service of process under G.S. 1A‑1, Rule 4(j) or Rule 4(j3). If
given by registered or certified mail, by signature confirmation as
provided by the United States Postal Service, or by designated delivery service
authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, notice
shall be deemed to have been given on the delivery date appearing on the return
receipt. receipt, copy of proof of delivery provided by the United
States Postal Service, or delivery receipt. If notice cannot be given personally
or by certified mail, by one of the methods for service of process under
G.S. 1A‑1, Rule 4(j) or Rule 4(j3), then notice shall be given
in the manner provided in G.S. 1A‑1, Rule 4(j1)."
SECTION 2.4. G.S. 150B‑42(a) reads as rewritten:
"(a) After compliance
with the provisions of G.S. 150B‑40(e), if applicable, and review of
the official record, as defined in subsection (b) of this section, an agency
shall make a written final decision or order in a contested case. The decision
or order shall include findings of fact and conclusions of law. Findings of
fact shall be based exclusively on the evidence and on matters officially
noticed. Findings of fact, if set forth in statutory language, shall be
accompanied by a concise and explicit statement of the underlying facts
supporting them. A decision or order shall not be made except upon
consideration of the record as a whole or such portion thereof as may be cited
by any party to the proceeding and shall be supported by substantial evidence
admissible under G.S. 150B‑41. A copy of the decision or order shall
be served upon each party personally or by certified mail by one of
the methods for service of process under G.S. 1A‑1, Rule 5(b). If
service is by registered, certified, or first‑class mail, by signature
confirmation as provided by the United States Postal Service, or by designated
delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery
receipt, the copy shall be addressed to the party at the latest address
given by the party to the agency and a agency. Service by one of the
additional methods provided in G.S. 1A‑1, Rule 5(b), is effective as
provided therein and shall be accompanied by a certificate of service as
provided in G.S. 1A‑1, Rule 5(b1). G.S. 1A‑1, Rule 6(e),
applies if service is by first‑class mail. A copy shall be furnished
to his the party's attorney of record."
ALL SUMMONSES UNDER RULE 4 TO BE SERVED WITHIN 60 DAYS
SECTION 3.1. G.S. 1A‑1, Rule 4(c), reads as rewritten:
"(c) Summons – Return.
– Personal service or substituted personal service of summons as prescribed by Rule
4(j)(1) a and b Rules 4(j) and (j1) must be made within 60 days
after the date of the issuance of summons. When a summons has been served upon
every party named in the summons, it shall be returned immediately to the clerk
who issued it, with notation thereon of its service.
Failure to make service within the time allowed or failure to return a summons to the clerk after it has been served on every party named in the summons shall not invalidate the summons. If the summons is not served within the time allowed upon every party named in the summons, it shall be returned immediately upon the expiration of such time by the officer to the clerk of the court who issued it with notation thereon of its nonservice and the reasons therefor as to every such party not served, but failure to comply with this requirement shall not invalidate the summons."
REQUIRING SERVICE ON ATTORNEYS OF RECORD UNDER RULE 5(B) AND IN TERMINATION OF PARENTAL RIGHTS BY MOTION
SECTION 4.1. G.S. 7B‑1102 reads as rewritten:
"§ 7B‑1102. Pending child abuse, neglect, or dependency proceedings.
(a) When the district court is exercising jurisdiction over a juvenile and the juvenile's parent in an abuse, neglect, or dependency proceeding, a person or agency specified in G.S. 7B‑1103(a) may file in that proceeding a motion for termination of the parent's rights in relation to the juvenile.
(b) A motion pursuant to subsection (a) of this section and the notice required by G.S. 7B‑1106.1 shall be served in accordance with G.S. 1A‑1, Rule 5(b), except:
(1) Service must be in accordance with G.S. 1A‑1, Rule 4, if one of the following applies:
a. The person or agency to be served was not served originally with summons.
b. The person or agency to be served was served originally by publication that did not include notice substantially in conformity with the notice required by G.S. 7B‑406(b)(4)e.
c. Two years has elapsed since the date of the original action.
(2) In any case, the court may order that service of the motion and notice be made pursuant to G.S. 1A‑1, Rule 4.
For purposes of this section, the parent of the juvenile shall not be deemed to be under disability even though the parent is a minor.
(b1) If a parent who is served under G.S. 1A‑1, Rule 4, with a motion under this section has an attorney of record, a copy of the motion and the notice served upon the parent shall also be sent to the parent's attorney.
(c) When a petition for termination of parental rights is filed in the same district in which there is pending an abuse, neglect, or dependency proceeding involving the same juvenile, the court on its own motion or motion of a party may consolidate the action pursuant to G.S. 1A‑1, Rule 42."
SECTION 4.2. G.S. 1A‑1, Rule 5(b), reads as rewritten:
"(b) Service – How made.
– A pleading setting forth a counterclaim or cross claim shall be filed with
the court and a copy thereof shall be served on the party against whom it is
asserted or on the party's attorney of record. record as provided by
this subsection. With
With respect to all
pleadings subsequent to the original complaint and other papers required or
permitted to be served, service with due return may be made in the manner
provided for service and return of process in Rule 4 and may be made upon
either the party or, unless service upon the party personally is shall
be made upon the party's attorney of record and, if ordered by the court,
upon the party's attorney of record. With court, also upon the party. If
the party has no attorney of record, service shall be made upon the party. With
respect to such other pleadings and papers, service upon the attorney or
upon a party with due return may be made in a manner provided for
service and return of process in Rule 4. Service under this subsection may
also be made by one of the following methods:
(1) Upon a party's attorney of record:
a. By delivering
a copy to the attorney. party or by mailing it to the party at the
party's last known address or, if no address is known, by filing it with the
clerk of court. Delivery of a copy within this rule sub‑subdivision
means handing it to the attorney or to the party, attorney, leaving
it at the attorney's office with a partner or employee, or by sending it
to the attorney's office by a confirmed telefacsimile transmittal for receipt
by 5:00 P.M. Eastern Time on a regular business day, as evidenced by a
telefacsimile receipt confirmation. If receipt of delivery by telefacsimile is
after 5:00 P.M., service will be deemed to have been completed on the next
business day.
b. By mailing a copy to the attorney's office.
(2) Upon a party:
a. By delivering a copy to the party. Delivery of a copy within this sub‑subdivision means handing it to the party.
b. By mailing a copy to the party at the party's last known address or, if no address is known, by filing it with the clerk of court.
Service by mail shall be complete upon deposit of the pleading or paper enclosed in a post‑paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.
(b1) Service – Certificate of Service. – A certificate of service shall accompany every pleading and every paper required to be served on any party or nonparty to the litigation, except with respect to pleadings and papers whose service is governed by Rule 4. The certificate shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served. If one or more persons are served by facsimile transmission, the certificate shall also show the telefacsimile number of each person so served. Each certificate of service shall be signed in accordance with and subject to Rule 11 of these rules."
EFFECTIVE DATES AND APPLICABILITY
SECTION 5. This act becomes effective October 1, 2011. Section 1.1 of this act applies to small claims actions filed on or after that date. Section 2.1 and Section 2.3 of this act apply to notices given on or after that date. Section 2.2 and Section 2.4 of this act apply to decisions or orders served on or after that date. Section 3.1 of this act applies to summonses issued on or after that date. Section 4.1 of this act applies to motions filed on or after that date. Section 4.2 of this act applies to service made under G.S. 1A‑1, Rule 5(b), on or after that date.
In the General Assembly read three times and ratified this the 18th day of June, 2011.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 11:31 a.m. this 27th day of June, 2011
